Tuesday, 17 September 2013

Residential Tenants and the Covenant of Quiet Enjoyment

If you have some experience in landlord and tenant matters, or are of a certain age, you will be familiar with the phrase "covenant for quiet enjoyment" and you will operate under the assumption that a tenant, in a residential lease, has the right to quiet enjoyment of his or her property as a term of the lease.   The word "covenant" means a contract, an agreement, or a serious promise.  Hence, a tenant has the benefit of a an agreement to quiet enjoyment of their rental unit.


The words "quiet enjoyment" do not refer to the noise level in a rental unit.  Instead, the "quiet enjoyment" was traditionally understood to mean that the tenant would not be physically interferred with in the rental unit--though under some circumstances loud noise could indeed affect the tenant's physical use of the premises and hence amount to a breach of the covenant for quiet enjoyment.

So what is the point of this article today?  It is to highlight the fact that the phrase "covenant for quiet enjoyment" does not in fact appear anywhere in the Residential Tenancies Act.  What we understand as the tenant's right, is in fact a term that is only implied into rental agreements through the common law, the Conveyancing and Law of Property Act, or sometimes through the written lease document.

Does it matter that this phrase does not appear in the Residential Tenancies Act?  I think the answer is both yes and no.  The "no" part of the answer is because the RTA does provide a tenant with the protection that a landlord shall not at any time during the course of a tenancy "substantially interfere with the reasonable enjoyment of the rental unit or the residential complex in which it i slocated for all usual purposes by a tenant or members of his or her household" (section 22 RTA).   You can see that the protection of section 22 is similar in nature to the protection afforded by the phrase "covenant for quiet enjoyment" and arguably section 22 is an expression of the phrase that is clearer in meaning.

However, on the "yes" side of the argument, I do find that the phrase covenant for quiet enjoyment has a connotation that is broader and different than the current wording of section 22.  While section 22 is being read and interpreted broadly by the Board; I think it is still fair to say that the phrase "covenant for quiet enjoyment" has a historical and judicial interpretation that is more favourable to tenants and more absolute and what section 22 RTA implies.  

The section 22 RTA obligation focuses on what the landlord does, while the "covenant for quiet enjoyment" was interpreted more as a guarantee that operated regardless of what the landlord did.  In this sense, relying on the authorities that express an opinion about what the covenant for quiet enjoyment means can be useful, still today, in Landlord and Tenant Board matters.

Michael K. E Thiele
Ottawa Lawyer

60 comments:

  1. Residential tenancy law in Canada is generally legislated by the provinces. The common scheme involves a basic law that outlines tenant and landlord duties and rights and an administrative forum to deal with disputes.Landlord Tenant Board Toronto

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    1. I was reading about the "Quiet Enjoyment" covenant in Conveyancing and Law of Property Act. Looking at some of the case law out there, most notably McCall v. Abelesz [1976] QB 585, 594E (CA), Lord Benning ruled that there need not be "physical interferrence" in a case where the landlord has interferred with the quiet enjoyment. Seems to me that common law has moved away from "physical interferrence" in cases of Quiet Enjoyment.

      Caldwell v. Valiant Property Management [1997] seems to explire this covenant fairly well.

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    2. Thank you for the comment. For anyone interested in reading Caldwell here is a link http://www.canlii.org/en/on/onsc/doc/1997/1997canlii12127/1997canlii12127.html

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    3. Hi Michael. I moved into a house and after 6 weeks I n noticed the first bed bug. Upon inspection I found TONS of fecal matter along the bottoms of the baseboards, specifically along the wall where the prior tenants had positioned the head of their mattress (on the floor). It took the Landlord 25 days to get the place treated, then it took another week before we could put our rooms back together because the contractor who pulled all the baseboards off left the nails sticking through them and asked us to keep everything piled in the middle of the room until he could return (was supposed to only be a day, then a couple of days, then it was a week). Does this constitute a contravention anywhere? I didn't sleep for weeks, And that week that the whole house was in disarray, we had to sleep at my parents. Thanks so much for any advice.

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    4. Hi Michael,

      I have just moved to another unit in my building, I have new neighbour that insists on walking his noisy toddler up and down the hallway, every evening. The child is loud, and I find the noise disruptive. What are my options, he is in a common area, using the hallway an an extension to his unit. Sometimes the kid is screaming, always very loud. Yesterday when I opened my door to check, the kid was alone in the hallway pounding on the door to be let back in. Anyway, not sure how to deal with this, I continually open my door and give him dirty looks because I am afraid if I say anything, I am just going to snap. Any advice would be greatly appreciated!!

      Thank you!!

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  2. This is what I am looking. Really need this post for my research. Thank you so much for giving us a very a great views.Landlord and Tenant Act Toronto

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  3. Our landlords live in the basement apartment, we live upstairs, They have a large collection of various birds that squake constantly, It's like the fricken bird section of a large pet store. It drives us nuts, we can't enjoy our living room without hearing this birds squaking all the time. I would assume this constitutes as a break of our covenant for quiet enjoyment.

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    1. Jack: If it wasn't driving you so crazy your situation begs for a joke to be made as it is just a little bit crazy that people could have so many pets. Anyway, the application to the Board you use will be a T2 application. Have you given a thought to the remedy you want? You could use this as a way to terminate your lease, get a rent abatement, get an order requiring the interference to stop etc.. It will be a tough one as the landlord will likely fight you quite a bit as people tend to be quite attached to their pets. Good luck.

      Michael Thiele
      Ottawa Lawyer

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  4. Hi Michael,

    We are foreign students renting rooms in a very big house (10 rooms at least, only students). Our landlords live just next door. We signed a contract saying "no overnight guest" (which really surprised us) and now they even forbid us to invite any kind of guest (threatening to call the police and make us pay $450 fine if we do). They have camera everywhere to check on us (but they say it is for our safety). They also say that they might accept overnight guests only if they can charge us.
    Some Canadians talked to us about this "reasonable enjoyment of the renting area" law but from what we can read in your article we don't know if this law applies to our case. Could you please enlighten us? Are they allowed to forbid us to have guest (overnight or not) and charge us for it?

    On top of it all, they always enter the house without notice and sometimes even enter our bedrooms. Are they allowed to do so regarding the fact that we are renting "just" a bedroom or do they have to notice us before entering the house?

    Thank-you very much in advance for your precious help.

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  5. Hello:

    I am sorry to say that you and your room-mates are being taken advantage of by your landlord. You are clearly in a rooming house and that rooming house is indeed covered by the Residential Tenancies Act. You have the right to "quiet enjoyment" just like any other tenancy that is covered by the Residential Tenancies Act. The landlord may not prohibit guests and the no over-night guests is extreme. One can see the logic of a restrictionon guests given that only rooms are being rented and if everyone had permanent guests it would be problematic. Quickly there would be over-crowding. However, I do not see any legal bar to any one of you having occassional over-night guests. The landlord is not entitled to charge for this or require you to pay a fine. It is illegal for the landlord to fine you---the landlord does NOT have such a power. The landlord's threat to call police is simply playing on your ignorance of the law. For the most part, police do not get involved in Landlord and Tenant matters and this would not be a matter for the criminal law in any event.

    Entering the house without notice can also be a problem. The Landlord is required, by law, to provide you with 24 hours notice and state the reasons for the entry and those reasons need to be in accordance with section 27 of the Residential Tenancies Act. Entry without notice is possible for emergencies as set out in section 26 of the Residential Tenancies Act.

    If you are students at a University and the school has a law school and a student legal clinic you may wish to go there and get help. A law student, in the clinic, under the supervision of a lawyer, can answer questions, write letters, and represent you against your landlord if needed.

    Good luck. If you wish to look up the law you can find it on the Ontario Landlord and Tenant Board website.

    Michael K. E. Thiele

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  6. Hi,
    I (tenant) live in an apartment on 1st floor and people (tenant) living in basement has problems with us (mainly because of bad construction). Whenever my kids play, they hear the noise and same is the case when TV is played in our apartment. My kids (2 & 4 1/2) are young so sometimes they run which I think is normal for kids at this age. Landlord is helpless in this case. Can you please suggest how can I solve this problem?

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  7. Hi there:

    Your problem is a very common one and I hear of these kinds of problems all of the time. Sometimes I hear from the tenants below who describe sounds of herds of elephants, perpetual banging and drumming, and sometimes the noise is interpreted as being intentionally antagonistic.

    The fact is that everyone is entitled to quiet enjoyment of their rental unit and that includes your right to use the apartment in a normal manner. Living in an apartment building brings with it a certain "closeness" with neighbours. It is not realistic to expect perfect quiet as that defies the communal nature of apartment living. So, to a certain degree, people who choose to live in apartment buildings have to accept and put up with certain noises and sounds. That a child runs or flops around, that a television at a "normal" level can be heard outside of a unit, may in fact be something that in your apartment building must be tolerated. However, if your use of the apartment and the noise of the children is beyond a reasonable level or duration then you can be evicted for the noise if the landlord chooses to serve a Notice of Termination. The key to the issue is whether your use of the unit is unreasonable and the noise you create is beyond "normal" sounds of living.

    In poorly constructed buildings (and there are many of them), the noise transference problem can sometimes be addressed by installing a thicker carpet with a good high quality underpad. Doing so can totally mitigate the reverberation or drum effect that comes from any sound including walking across the floor. If you don't have good carpeting, perhaps the landlord may agree to install one. If the landlord truly does nothing then it will be your poor neighbour who suffers. If your landlord wants to take steps against you demand carpeting and if there is carpeting demand that he take steps to sound-proof the floor and ceiling. The key to your defence (if an application is filed) is to prove that your kids are "normal" and that they are not running around like little devils smashing into walls and making crazy loud noise.

    If the disagreement between you and the neighbour continues and the landlord does nothing at all, perhaps you can both agree to bring an application to the Board asking the Board to order the landlord to look into sound proofing the floor/ceiling between the units.

    Hope that helps

    Michael K. E. Thiele
    Ottawa Lawyer

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    1. Thank you very much for your helpful response.
      Regards,
      Ali

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    2. I am having a similar problem. Two tenants upstairs have moved out, both complaining that my 3 year old is too loud, but the last one also says my television is too loud at night. My son is sleeping in the same room with the TV and it's down so low that I have to use the captions because I can't hear it. My landlord knows she can't kick us out, so now she's raising our rent. If she does this, then I'm going to demand a new refrigerator, the old one is barely functional and is rust-eaten, and maybe some soundproofing between the units. I'll also probably stop cleaning up the grounds, which is her job anyways, but since I've been here the longest and she never seems to get around to it, I usually just end up doing it. Maybe I'll stop shovelling the snow too!

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  8. hi Michael, my husband, myself and our newborn son live in a townhouse within a condo community. Our landlord owns the house and we rent from him. The condo board has decided to do renovations that we were not told about when we signed our lease in September of last year. We specifically asked our landlord if this would be a quiet and safe neighborhood for our baby as I was pregnant at the time we were searching for a home. He told us it was extremely quiet and safe. I woke up a few weeks ago to a man outside my bedroom window on scaffolding. He was removing the siding and insulation that had type 2 asbestos and there is dust everywhere, the banging is extremely loud and lasts all day. We received in our mailbox a letter, 4 legal pages long stating that we will have to put up with construction noise from March 2014 - December 2014 from 7am to 4pm Monday to Friday. My son is only 10 weeks old and is no longer able to sleep during the day, he cries from the startling noises and I am also concerned about the asbestos dust right outside our window, but that is a separate issue. my son and I are staying with family now, but we don't want to continue paying for rent in a home we are no longer living in due to unsafe and unquiet conditions. Our lease is done September 2014 but the construction will still be going on well past that. Any advice for us?
    Also, if we were to take this to the board would we need a lawyer or could it be done without one?

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    1. Thanks for the question. The key to the ultimate remedy you may get from the Board lies in your question to the landlord about it being a quiet and safe neighbourhood. Hopefully you have this in an email or in some other way that you can prove that you asked the question? That you are suffering this kind of inconvenience and interference with your quiet enjoyment is the basis of an application to the Landlord and Tenant Board. You would file the application in Form T2. The question for the hearing will be the appropriate remedy as there will be no doubt that the work is disturbing. You will want to seek a termination of the tenancy from the Board on the basis that the premises are no longer habitable--zero value and zero use to you. While the inconvenience to you is obvious, the nature of the remedy is more complicated. The Regulations to the Residential Tenancies Act contain a section that deal with the appropriate remedy during maintenance and repairs. It is possible, if the landlord follows the rules, for a tenant to be disturbed and still get a zero rent abatement and nothing for the inconvenience. This section in the regulation has numerous sub-parts and the landlord needs to have complied with them all for there to be no remedy. From what you explain, I know already that the landlord has not complied with the regulation. On that basis you can use the requirements of the regulation to push for an order terminating the tenancy as well as compensation for what you have suffered to date. If you seek a rent abatement, termination of the tenancy, and then compensation for the moving, utilities hook ups, and other expenses, you should have enough there for the landlord to recognize the sizeable risk of the application and then you may be able to negotiate reasonable terms of termination of the tenancy. While you have a good case, it is not a slam dunk and you should not presume success at the Board (though the chances are good).

      Do you need a lawyer? This is a difficult question. The easy answer is "yes" for the simple reason that a lawyer experienced in Landlord and Tenant law will know the ins and outs of the legislation and practice at the Board. That experience is employed to your benefit if you retain an experienced landlord and tenant lawyer. There is no downside to having counsel from the perspective of having your case put forward in the best possible way. An example of that is the information I have just given to you about the regulation to the RTA dealing with abatements arising from maintenance and repairs as the vast majority of applications that go to the Board on similar grounds make no reference to this regulation. Of course there is a big "but" in relation to hiring a lawyer. The issue is cost and affordability. The landlord and tenant board has an extremely weak costs policy meaning that success at the Board does not result in the winner getting contribution to legal fees from the loser (which is normal in Court). It means that you are solely responsible for your legal fees. In your situation, where the goal is termination of a lease incurring the legal fees may make sense to you. In situations where you are not seeking to terminate a tenancy but only want compensation for some issue, the amount of the legal fees could exceed the benefit of the case. That is the balancing act in deciding whether to hire a lawyer or not. Technically, the Landlord and Tenant Board does not require you to have a lawyer. However, either side may be represented.

      Hope that helps and good luck.

      Michael K. E. Thiele

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  9. Hi Michael,
    I live in an apartment above a restaurant. The area settles down pretty early despite being on a main street, and the restaurant below closes at 10pm every night. Sometimes they have private functions where they play music so loud that it's as if we're playing the music in our own apartment. I moved in years before they started renting and never had any problems with the previous restaurant, but now we hear pounding for hours on end during the day (I believe they are pounding dough?), and cranked music after they close at night. I have tried to use ear plugs, a fan, white noise machines, escaping the sound in the shower, and even buying noise-cancelling headphones, but the bass still cuts through everything.
    The staff regularly celebrate after they close, partying on weeknights until around midnight. I have tried to talk to them and they are apologetic and say that they will turn it down, but then they turn it up again or it just happens again the next night.

    They are currently hosting a wedding reception that is supposed to go on until the wee hours of the night. I have to be up in the morning for work, but the majority of the sound emanates from under my bed. I would sleep elsewhere, but our apartment is fairly small, so the only escape is to actually physically leave.

    I know loud music is prohibited in residential areas after 11pm, but what are my rights living above a commercial store? Do I have any? Any advice you could offer would really help a lot!

    Thanks!

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    1. Hi Jess. Is your landlord the landlord of the restaurant as well? Your lease contains a covenant of quiet enjoyment (it is implied in every lease). Your remedy is to complain to the landlord and failing any action to file an application to the Board. The reality is that the value of the restaurant as a tenant is likely more important to your landlord (presuming they are the same) than your tenancy. The ability of the landlord to act against the restaurant is also quite different as it is not a residential tenancy.

      Given the extent of the noise coming from this business it seems doubtful that noise proofing would have any benefit (thick underpad and carpets often help for lesser noises). See if your landlord has any solutions. Otherwise, you may find yourself looking for a new apartment and asking the Landlord to pay the costs of moving, rent increase, etc.. The landlord can volunteer the money in making a deal with you or you can seek it at the Board.

      Best of luck.

      Michael K. E. Thiele

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  10. Hi Michael. We live in a condo that we rent from the developer who built the place, and who is currently building an adjacent phase 2. As part of the construction they will be turning off all but emergency power to our unit from 9 am - 9 pm on Tuesday and 9 am - 5 pm on Thursday. Food in our fridge will spoil, my wife will be unable to use the unit during the work day as she usually does, and we'll have to eat out on Tuesday. In other words, this will impose significant inconvenience and cost.

    The power outage seems like a pretty basic interference with our "reasonable enjoyment of the rental unit." In your view, would we have a reasonable/clear claim for compensation and/or rent abatement? Thanks for any input you can provide!

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    1. Hi: The answer is "perhaps" and I know that is less than helpful. There is an ongoing battle over compensating tenants who lose the use or quiet enjoyment of their premises during maintenance or repairs. The Regulations to the RTA have a section (s.8) that speaks to a tenant's entitlement to an abatement during maintenance/repairs and if complied with the right to compensation is seriously curtailed if not eliminated. That being said, you seem to be describing something that is not repairs or maintenance but instead is new construction---no part of which is needed to maintain your residential complex. That only some of the power to your unit would have to be turned off raises more questions. While I won't say for certain that you are entitled to compensation I see a strong argument for one given that the reason for the power outage is simply the landlord's desire to build a bigger complex. Compensating you should be part of his "costs" of building.

      Michael K. E. Thiele

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  11. Hi Michael,
    I live above a retail establishment (a tattoo parlour) and we have an agreement to divide the electricity bill so that I pay 25% and they pay 75%. My landlord and the tattoo parlour are now insisting we switch to paying 50% each without any evidence that the consumption of electricity has changed. My lease says "These ratios are subject to change depending upon consumption and subject to review." What recourse do I have to object to this change? My lease is up for renewal in August, but the other tenant wants to change the bill division now. My landlord in now regularly calling and emailing me to try and get me to agree, and he says he will evict me if I don't agree. I spoke to a legal aid clinic at my school, and they instructed me to file a complaint for interference with reasonable enjoyment. Does this sort of thing fall under reasonable enjoyment? Thanks so much for any input you can provide.

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    1. This comment has been removed by the author.

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    2. Hello: You have asked a fantastically complicated question and I'm not sure that I can provide sufficient guidance in this reply to clear up the issue. Anyway, take a look at section 138 of the Residential Tenancies Act. It is entitled apportionment of utility costs. Then also take a look at O.Reg. 394/10 of the RTA. After you get over your headache contemplating the complexities of utility apportionment--flip back to the beginning of section 138 and note the words in the section " with the written consent of the tenant..". My summary of the complexities is that the most you can be charged is what is currently levied, that any change requires your written consent, and likely your landlord is not in compliance with this section in any event. The advice you received to file a T2 is certainly an option--but I'd save the hassle and simply do not agree. If the landlord wants to take action to evict (good luck to him--he will need it) you can fight at the Board and have the Board rule then.

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    3. Thank you so much for your helpful response! Does Section 138 still apply if the utilities are under my name, as was required in the lease? The landlord isn't involved in paying the utilities, but wrote the contract governing their apportionment that was in the lease.

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    4. Hi: That certainly is unusual. If I understand this correctly, the tattoo parlour's source of electricity is entirely contingent on you paying your hydro bill? If the tattoo parlour get's equipment or runs up a massive bill then it is your legal responsibility to pay it? It seems that a condition of renting the premises is that you have to pay someone else's hydro abd assume personal liability for the charge. In a sense it the landlord is interfering with the provision of a "vital service" by depriving you of the ability to get electricity unless you make yourself responsible for someone elses bill as well. This strikes me as fundamentally wrong though I'd have to work through the legal logic of how to challenge this at the Board.

      Section 138, I think, was intended to apply where the landlord was paying for electricty for multiple units and then charging propoertionate amounts back to tenants. You can see this intend in the wording of the sections. From this perspective I don't think section 138 contemplates your circumstances of being the person who is liable for the entire complex's electricity costs.

      From a brainstorming perspective, I wonder if you could say that section 138 is the only way the RTA permits the sharing of electricity costs among separate tenants where the landlord's building does not have the infrastructure to provide separately metered power to each unit. While it's not a perfect fit, I'd take a look at a T7 application and see if that can help you get what you need. Which leads again to the question of what do you need. If you continue to be satisfied with the current split and it seems fair to you--why do anything?

      Best of luck

      Michael K. E. Thiele

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  12. Hi Michael,

    I have been living in an apartment complex in Toronto housing 15 years and we pay market rent. About couple years ago, they started renting out units to low income families who moved from the projects. We pay $1600/month and those families about $300-$600/mn. When we moved, our neighbors kids (well behaved) try play on the top floor terrace, and the superintendent put a stop to it within couple of days. It was a very quiet and peaceful complex. Now, we have kids not only from units but also from outside, doing drugs, drinking. Also the families that moved recently (they have terrace on there units on 1st floor) send there kids to top floor terrace (7th floor) to play. They are extremely noisy, hitting and banging the walls with there balls. The kids must have played/behaved like on there earlier places. Basically from noon- late nights on weekends and after school on school days. The superintendent told to call the security to keep a log of events so they can take actions. Last couple of times, security let the kids (under 19) to smoke and drink. I got hold of the security guard who was on patrol today, and was told he can't do anything because it is private property and they can drink and smoke pot. The leave behind empty liquor/beer cans.. He can only stop the noise after 11::00pm. On the terrace and building pathway they have notices says its private property owned by TCHC and no loitering. My rent will be increased by $70/per month due cost of maintaining the building. The damages from broken doors, windows and walls done by this kids. What are my options?

    PS. Right now we unable to move due to health reasons.

    Thanks,
    Kash

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    1. Hi Kash:

      As a tenant you have a right to quiet enjoyment of your rental unit. If the noise from the kids, the drinking, the drugs, causes you to suffer a substantial interference with your reasonable enjoyment of the property then the landlord is required to take action against the perpetrators. Drinking, drug use, and noise, whether committed in a private unit or on the common elements of the property can not be excused if the activities are bothering other tenants.

      If the landlord refuses to take action, or excuses the behaviours complained of, then unfortunately you will have to take action against the landlord. The first task will be to document and record the events that are causing you to have no quiet enjoyment of your premises. This can be video, photos, notes and records, calls to security, calls to by-law, discussions with neighbours and getting them to agree to come and testify and getting them to give you written statements. As you collect this evidence you will want to write to the landlord to lodge your complaints. Write to the landlord in such a way that you can prove that you wrote to them--(send it by fax, hand-deliver a copy and get them to acknowledge receipt on a copy). Keep copies of all of your complaints. Then follow up in writing with the landlord every few days. Deliver renewed complaints as more noise happens.

      Presuming you have collected enough evidence (proof of the events), and after a month or two of waiting for the landlord to do something, you would file your own application against the landlord. Use a form T2--available from the landlord and tenant board. That application will give you various remedies.

      It will of course be much easier to pursue this angle if you are represented and have a lawyer or paralegal who knows the way the system works. Alternatives to this course of action are few. You can complain to your city councillor or try again with your superintendent or anyone who will listen.

      best of luck

      Michael K. E. Thiele

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    2. Thanks a lot. I did call the property manager, and was told that kids are not allowed to play on common area. She did give the tenants verbal warnings. I was told to call the security, so that they can take written reports for the management to take proper actions. When we called the security, we were told by the security supervisor , they can't do anything about the children playing or the screeching noises made by children. Also, we were told that property management have no clue on what can be done i.e they are not trained security. This is affluent neighborhood, and is very quiet. The children of the tenants moved recently from the projects to this building and paying 1/8th of the rent. They are accustomed to playing and making loud noise in there earlier environment. The disturbance is everyday from around 4:00pm-9:30pm on weekdays and morning till late night on weekends. .The management is taking legal action against one tenant (we had different security team who kept record of their activities). Now we have really dick for security, who doesn't want to do anything.The management office is closed for about another 5 days. Our problem is security doesn't want to do anything for the management

      What are my other options? Can I call the police (was told by someone usually they will warn them to keep quiet, if it is public nuisance, another tenant got $350 ticket for dog barking in his own unit) ? Should I go the neighboring condo complexes, and ask them to make formal complaints about our building? Noise is really loud, and I am struggling when I get home to relax.

      Thanks again,
      cheers!!!
      Kash

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  13. Hi,
    I was wondering if you could help me with this matter. I recently bought a semi-detached home and My neighbour's tenant in his basment plays the drums. Not only is it very loud but he plays for hours at a time. My neighbour states their is not much he can do. I was told by another that apparently there is a law in Toronto about muscians and their instrument playing. It this correct? and what can I do about this.
    thanks

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    1. Hi: The Residential Tenancies Act is not going to be of much help to you. As you are not a tenant of your neighbour (who is the landlord of the tenant doing the drumming), the impact of the drumming noise on you is of no consequence under the RTA. Your neighbour (the landlord), may of course take steps to terminate the tenancy but if he does nothing you have no right of action under the Residential Tenancies Act. You may of course call by-law, get tickets issued, call police, but those actions do not lead to eviction. Ultimately, when you are finally at your wits end, the only thing to do will be to sue the owner neighbour and the tenant in the Superior Court of Justice. The cause of action is likely in nuisance. This will be profoundly expensive and only something that practically can be done by a lawyer for you. Perhaps it would work in the Small Claims Court--which would allow you to hire a para-legal and save some expense--but I imagine you would want injunctive relief which I do not believe is available in the Small Claims Court. Start collecting evidence of what you have to deal with. Lots of by-law complaints--get the evidence together as no proceeding without evidence will be successful.

      Best of luck.

      Michael K. E. Thiele

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  14. Hi,
    We recently moved into a rental condo (former apartment that was renovated) and we have been hearing shouting and screaming from a woman hanging out in the hallway. The woman is living next door to us with her partner. She often acts disruptly around midnight or so. I have contacted the superintendant, the Toronto Municipal services, and the Tenant-landlord board with no help. I called the cops last night and they talked to the woman and stated that she has some mental health problems. I also notified the landlord who has kept herself away from this matter. I don't know how to deal with this frustrating matter because i am tired of hearing her shouting and violent screams in the middle of the night.
    Thanks

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    1. Hi: The fact that you live in a condo building complicates matters as it is likely that all of the condominium units are owned by different owners. Your landlord does not by chance own the unit that the tenant who is screaming lives in? If he/she does then the path to getting this dealt with is a little easier. If your landlord only owns your unit then it is a little more difficult.

      From what you describe, and from what the police told you, it is clear that you have a person with a mental health problem in your building. In a residential tenancies context people with mental health problems are not permitted to continue to disturb all other neighbours while at the same time all of the neighbours and landlord must not allow themselves to be so easily disturbed taking into account that the person has a disability. Basically, tolerance, understanding, and accommodation is required. This does not mean that you are just required to put up with the screaming. A case from the Divisional Court several years ago discussed a similar situation that you describe and it reviewed the duty to accommodate the tenant making the noise. The case is Walmer v. Wolch and can be found here: https://www.canlii.org/en/on/onscdc/doc/2003/2003canlii42163/2003canlii42163.html?searchUrlHash=AAAAAQAqc2NoaXpvcGhyZW5pYSBsYW5kbG9yZCB0ZW5hbnQgaHVtYW4gcmlnaHRzAAAAAAE (sorry blogger doesn't let me imbed a link in "replies" so you will have to cut and paste.)

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    2. In a regular apartment building where the landlord is the same for all of the units, a landlord would be required to deal with the tenant making the noise. The landlord would be required to serve an N5 (Notice of Termination for Substantial Interference). The tenant making the noise would have an opportunity to correct the problem. Further, because the problem arises from a disability the process to resolve the problem would have to be more flexible than the strict application of the normal and usual rules for disturbing neighbours. Ultimately, if the tenant making the noise (even though it arises from a disability) is unable to manage the problem in a way that is considered reasonable on an objective basis, the Landlord and Tenant Board would probably terminate the tenancy and evict the tenant.

      The foregoing is what is supposed to happen. When a landlord fails to follow through on their obligation to proceed against a tenant making noise (i.e. serve an N5), then you, as a different tenant suffering the affects of the problem, may file an application against the landlord in Form T2--asserting that the Landlord is interfering with your reasonable/quiet enjoyment of the rental unit by failing to deal with the noisy neighbour. You do NOT through this process proceed against the noisy neighbour tenant directly. In such a hearing the landlord must prove that he/she has taken the legal steps necessary to deal with the problem. Failing that, you can get rent abatements and an Order requiring the landlord to deal with the problem. If it seems to be a convoluted process you are correct.

      The situation gets exponentially messier when you are dealing with rental units inside condominium corporations. In many instances, landlords in Condo units only own one or two units within the building. The trouble comes from units that the landlord does not own. Hence, the problem occurs in a space that is beyond the control of the landlord--a rental unit that the landlord has no power to serve with a Notice of Termination--it is analogous to complaining to the landlord about road work outside--what can he do?

      In these circumstances that landlord needs to be working with the property manager and the property manager needs to be taking direction from the Board of Directors. The Condo rules and bylaws will most certainly speak to the disturbing behaviour and there will be Rules against such disturbances. While I am unaware of any specific cases, the logic of the Divisional Court in Walmer will likely also apply in the context of Condo Corp's taking action against tenants or owners for disturbing behaviour.

      A Condo Corp has recourse to the Superior Court of Justice--and is not limited to the Landlord and Tenant Board. Interestingly, the Condominium Act has similar provisions to the Residential Tenancies Act when it comes to "disturbing behaviour". Ultimately, if he problem is being caused by an "owner" as opposed to a "tenant" the remedy can be more extreme in that the Court may, in due time, order the owner to sell the unit (there is case law to this affect for serious problems). If the person making the noise is a tenant renting from an owner then there can be eviction orders made--both at the Superior Court and/or at the Landlord and Tenant Board if the owner takes steps there. Often, Condo Corps. will require a landlord to take action against their offending tenants failing which the Condo Corp threatens and does take action in the Superior Court with all of those very significant costs being charged back to the owner.

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    3. If you are living in a condo building where no one, other than you, seems to care about the problem, then you are in for a very long fight. It may almost be worth it to consider terminating your tenancy (if the landlord will agree) and just move away from the problem. If terminating and moving is not in the cards, then you will need to consider legal action against your landlord and possibly against the Condo Corp.. Query, if the Condo Corp. through its Rules permits owners to rent out their units whether they too are landlords (by definition in the RTA) and you could even name them in a T2 application. I haven't seen this done but there are clever people out there so perhaps it has. I think from the structure of the legislation this might work---to see if it is worth a try in your situation a lawyer would need to review the condo documents and your lease.

      Anyway, as you may note, solving your problem is not going to be simple. If you have the means, it would be worthwhile to have a lawyer (with a speciality in Residential Landlord and Tenant law) shepherd you through this process.

      Good luck.

      Michael K. E. Thiele
      ottawalawyers.com

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  15. Hi Michael,
    My fiance and I live with our landlord. We rent the upstairs and she has a bedroom in a basement. We share the living room and he kitchen. We moved in with a dog which she was aware about and he is included in the lease. However, a few months in she purchased a cat which we are not fond of. This past weekend for thanksgiving she had her father and sister stay with her and the brought two cats with them. While we were away, one of the cats urinated on our bed. She has not handled this well and we feel very put out of our own home. Our mattress is stained as well as our comforter. Also, when we asked her to prevent this, her solution was to lock our doors. This won't work because our dog goes in and out of our room while we're out. Basically, how can we terminate our lease early to get out of here?

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    1. Hi:

      The first thing to do is to figure out if your leasing arrangement is covered by the Residential Tenancies Act. If you are covered by the RTA then the manner of termination is determined by the wording of the RTA. That being said, I doubt whether the RTA applies to you. You mention sharing a kitchen with the landlord. Section 5 of the RTA provides that the RTA does not apply if the following is true:

      living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner’s spouse, child or parent or the spouse’s child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located.

      Based on this and not having a better sense of your living situation I think you are likely RTA exempt. This means that you go about terminating your tenancy based on what it says in your contract with the landlord. If your contract is silent on the point or non-existent, then I would go with what is "reasonable" under the circumstances. Reasonableness will be informed by the circumstances of why you are giving notice to leave.

      Hope that helps

      Michael K. E. Thiele
      www.ottawalawyers.com

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  16. Hi Michael,
    I own a 3 bedroom condominium and have just recently moved my daughter and two of her friends into it. My daughter is a full time student and her two friends where also, until recently when they both dropped out. My daughter is now stuck living with two "friends" who party and have overnight guests 3-4 times per week. All he furniture in the unit belongs to my daughter and she often comes home to find randoms sleeping on her couch and watching her tv. I am an experienced landlord but this is my first stab at students......not liking it. I would like these two girls out. They are also pigs. Right now my daughter spends 4 nights a week with her boyfriend, carting herself and her two dogs back and forth. She comes home, the place is a train wreck, cigarette butts and beer cans. My question is about entry. If I am visiting my daughter in the unit I am not giving 24 hour notice to these girls. I just show up....my daughter so I am a visitor not there to do an inspection. Also this is shared accommodation so I figure I hey....why not. Maybe I'll stay overnight and make a mess? why not? So.....give me a reason why not :)

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    1. Hi:

      An interesting scenario and frankly not all that uncommon. The first question is "what law applies?" Your question seems to presume that the Residential Tenancies Act applies and that the roommates of your daughter have the protection of the RTA. To address that take a look at section 5(i) RTA which provides as follows:

      THIS ACTION DOES NOT APPLY WITH RESPECT TO,

      (i) living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent or the spouses child or parent, and where the owner, spouse, child or parent lives in the building in which the living accommodation is located.

      If this section fits your facts then the RTA does not apply and the usual protections of the RTA are not a factor. It is not a complete free for all as the contract between you still governs and unreasonable behavior usually tends to result in a penalty somewhere along the way. That being said, the security of tenure that goes along with being an RTA covered tenant does not exist where the RTA does not apply.

      Don't make too much of a mess---you may find that you have to clean it up!

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  17. Hi, I'm living in an apartment right now, and I have an inquiry I was hoping you could answer. The apartment is really a house that has been renovated into two separate apartments. I live in the upstairs, with two other people. The downstairs is occupied by a couple, and their months old child as well as two dogs. We constantly have problems between the two households, and our landlord -who doesn't live on the property- has said that she is to stay out of it. We have a common area that we share. It is simply hall way from our apartment to the laundry room that we share, and the hallway is directly on their entrance to their apartment. I'm looking for a way to be able to get my landlord to evict them. They constantly interfere with our living since they slam the door that is in our connecting hallway, as well their dogs howl when they're not home. Not only that, but their baby screams at midnight, as well as they party late into the night. They have their TV above a reasonable volume at times as well as their music. They use the hallway as a hangout at times, as well they use the laundry room as their dirty laundry hamper. As well, they have been asked by us, and the landlord, and yet they continue to leave their shoes in the hallway impeding our use of it. They have no sense of respect for others. We had to ask for new recycling bins because of their lack of responsibility to put the bins out or bring them in. The three of us upstairs are college students and we have quite stressful lives as well as early nights and mornings. These people make living comfortably impossible. Our landlord has strongly suggested that we move due to our discomfort with these people. I'm just wondering what grounds the landlord or ourselves have on the basis of getting rid of them?

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    1. Hi:

      Section 64 of the Residential Tenancies Act is the applicable section to the circumstances that you describe. I think a fair summary of this section is that a tenant may not do anything that substantially interferes with the reasonable enjoyment of the residential complex for all usual purposes by the landlord or another tenant or substantially interferes with another lawful right, privilege or interest of the landlord or another tenant.

      Whether a "certain" behaviour constitutes substantial interference and a breach of the tenant's obligations is an "objective" test. This means that just because you are bothered and substantially disturbed does not mean that the tenant has done anything wrong. The offending tenant's conduct is measured, in theory, against a reasonable person standard.

      Of the things you describe, I think the following constitute breaches of the tenants' obligations: 1) howling dogs, 2) slam door, 3) Party noise late into night, 4) loud T.V., 5) using laundry room as a hamper, 6) shoes in hallway.

      The baby screaming is more difficult and I would guess not a basis for eviction.

      Your landlord may not want to get involved but your landlord, legally, has a duty to get involved. You should put these complaints in writing to your landlord. Your landlord would then investigate and if the landlord determines that there is a basis for your complaint the landlord should either speak to the offending tenants or serve a Notice of Termination (Form N5) on the offending tenants. The Form N5 gives the tenants a chance to correct behaviour so eviction is not automatic. However, it is the start of an eviction process.

      If your landlord refuses to proceed as the law requires and in accordance with her duty, then you should collect the evidence of your complaints (i.e. be able to prove that what your complaints are about are indeed real). Then make sure to write to the landlord (email, text, letter) complaining about the problems and confirm that these things are interfering with your reasonable enjoyment of the premises. Advise the Landlord that if she/he fails to take steps to deal with the tenant then you will file an application against the landlord.

      When a Landlord fails to take their responsibilities seriously, and in situations like this when you can prove that your complaints are legitimate, you may file an application against the Landlord at the Board (Form T2). You may seek a rent abatement and an Order requiring the Landlord to comply with his obligations under the RTA. Take a look at the Form---you will see other potential remedies as well. However, before this is successful, remember that you need to be able to prove that your complaints are real and legitimate and you have to be able to prove that you informed the Landlord of the problems and that your landlord failed to take any action.

      The usual outcome in situations like this is that the Landlord all of a sudden becomes motivated to fulfill their obligations which means they take steps to evict the offending tenant (presuming of course the grounds are made out).

      Good luck and I hope that helps.

      Michael K. E. Thiele

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  18. Hi Michael,

    I saw that you are still replying to comments and so I was hoping you could offer some advice. First off thank you for the article as it is extremely informative. I live in NS and I live in a two bedroom apartment. My roommate is the one who has the lease with the property managers while my lease is strictly with him. Both my girlfriend and his boyfriend stay over frequently and my roommate notified me today that effective immediately there would no longer be overnight guests for both him and myself. I searched the NS tenant agreement and couldn't find anything, and my lease with him doesn't include anything. Could this either be enforced by him or the property managers? He said he went with this to the property managers and they said that there can be no overnight guests.

    Thanks!

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    1. Hi: When you say that you live in "NS" does that mean Nova Scotia? If so, I can not begin to comment as the law that I write about is Ontario law. I don't have the foggiest idea whether Nova Scotia and Ontario law are the slightest bit similar. Certainly, I am aware of significant differences between Landlord and Tenant Law in other common law provinces and Ontario. Hence, it really isn't prudent to assume that what works in Ontario will work in Nova Scotia. Residential Landlord and Tenant law is a matter of provincial jurisdiction so the laws that apply are unique to each province.

      Good luck and I'm sorry that I could not be helpful.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  19. NS does mean Nova Scotia. Thanks anyways!

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  20. Hi. I am a landlord in Ontario. We moved into one half of the duplex we own immediately after purchase. We have since then had continuous problems with the wife of the couple living on the other side. I myself made the mistake of going over to introduce myself and let her know that we were having a housewarming party and to ask her where it is most convenient for her to park usually and where she would like our guests to park. She immediately became emotional and defensive and it was very extreme. She was aggressive and speaking very loudly and harshly. She started bringing in personal issues that did not pertain to the situation and ended up slamming the door in my face saying "this is so inconvenient. I can't deal with this anymore". This was my first encounter with her. I am much younger and not a very aggressive person, and it completely shocked me. Since then she has refused to talk to me and speaks only with my husband, up until tonight. I had parked my vehicle in my regular spot approximately 2 feet from the back of the lot/snow bank. I came out to go to work and had to leave immediately, but their car was blocking mine. I heard them discussing being hungry and they both had their coats on. I assumed they were leaving for dinner. The wife yelled over in a very harsh and threatening tone that I need to park further back and I am " so far out" and they can't park then. This is the first time this has been brought forth as an issue to me. I immediately called out that I could definitely do that and got into my car to go to work. I put the keys into the ignition and could hear her swearing. Some direct quotes are "I can't *** stand them and she's parked so *** forward and I can't ***deal with this anymore," etc. I called my husband to explain what i was currently dealing with and had him on speaker phone as I waited as he put windshield wiper fluid into his car, and became anxious to get out to go to work. He yelled at her to "*** shut up" and she walked over to my car and rapped on my window. She started to yell that she can't "*** take this anymore. You can't be *** parking like this and *** acting like this and park *** farther back right now." I said I didn't realize she was waiting for me to move, I had overheard them talking supper and thought they were heading out, and I would back up right away. At this point my husband, still on speaker phone, asked to speak with her. She said, "I'm not *** talking to him...etc" as I tried to hand her the phone she hung up on him. She said "its so *** awful to live next to you people and you cant *** act like this and I can't ** deal with this anymore". She stormed off and slammed the door. I moved my car, stopped on my way out of the driveway to apologize to her husband for the miscommunication, and left. My husband and I are concerned about next steps. I am aware of the right of a landlord to evict a tenant for disturbing/interfering in the reasonable enjoyment or lawful right of a landlord. I am having a difficult time finding the definitionfor 'reasonable enjoyment' and am wondering if harassment falls under lawful right as a landlord. If so, what proof should I prepare in case this goes to a hearing? What should be our next steps?

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    1. Hi: A very unfortunate situation for you. If I understand correctly, this woman is your tenant in the other half of the duplex that you purchased. If so, the Notice of Termination to use is likely the N5 Form which you can get on the LTB website. The N5, and the process that goes with it, is quite complicated so you need to read the guides and be careful about the dates. It is also important to be very clear about the allegations in the N5 and provide a great amount of detail. From what you describe here, I would have no difficulty with the grounds being the swearing, intimidation and harassment. Blocking your vehicle is also a grounds for termination. Evidence of the blocking is a picture that you should take to prove what she is doing. The cursing etc., can be proven by your own evidence (i.e. testifying to the event) as well as you husband testifying to it. Better evidence would be a recording--which I appreciate may be difficult to get. You could prepare and serve the N5 now, based on the blocked parking and cursing/intimidation/harassment. You will see from the N5 guides on the LTB website (as well as other articles in this blog) that the N5 is a voidable notice of termination. If they correct the behaviour then they get to stay and there should be no issue because the misconduct is no longer occurring. However, I suspect that there will be other opportunities to record the cursing or take other pictures of the car blocking etc.. You will either be proceeding on the first N5 to the LTB, or if it is voided with the second N5 (again--the structure of the N5 termination process is something you will need to familiarize yourself with).

      A heads up to you as well. Your tenant sounds to be suffering from a mental health problem. Her behaviour and the things she is saying suggests she is suffering from some kind of disability. The disability does not excuse the conduct but you need to be aware of a duty to accommodate her under the Ontario Human Rights code. The Human Rights Code is not going to require you to simply live with the behaviour but the code will require you to work with the tenant (and require the tenant to work with you) to find an accommodation for the behaviour that allows you to move about the property without being harassed/intimidated and have access to your car while making sufficient allowances for the disability that gives rise to the behaviour. Accommodating the tenant may well be impossible and eviction inevitable but there is a Human Rights process that may complicate any LTB application that you bring. The Human Rights issues may be dealt with at the LTB.

      You may wish to consider finding an experienced LTB lawyer as your case is going to be a tricky one if the tenants decide to fight you.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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    2. Michael,

      Sorry to bring this forward to your attention again. Some new issues have arisen and it is quite the stressful situation. Our tenants did not speak to us within the 7 days they had to correct the problem stated on the N5 form. We were requesting that they rectify the situation through a formal apology or admission of error and discussion on how to deal with this further. We stated that the issue was overreactions in the form of intimidation and cursing to issues such as parking, and that my husband had already said if there are any issues with such things that they could come and discuss them reasonably with us at any time, which they were not doing. I could hear yelling from the wife on the other side and my husband was speaking very calmly. She ended up throwing the papers at him and offering him money, saying "I'm not going to apologize to HER. I won't apologize to HER. I don't like your wife, okay." This wasn't what he was requesting, and he refused to take money, and ended up having to walk away with the forms on the floor. She also stated many times that "respect has to be earned"; "we are 20 years older than you." They had a moving van there on the 7th day, and we were confused as he had told them it was a warning form and if the situation was corrected they wouldn't have to move. If it wasn't they would have 20 days. They didn't move out until 12 days after we gave them the form, but we knew they were moving due to the moving van (no word from them). They did not leave keys or say anything, but yesterday we received a letter in the mail saying that they filed an application with the LTB about tenant rights and there is a hearing scheduled. They have not given us a copy of the Application and the Notice of Hearing but my husband called the LTB and they said that from what they can see their case is concerning harassment and they are suing for an amount which I won't state here to leave out SOME specifics, and moving expenses. I am not sure even what grounds they could have. I am not naive to what it means to harass someone, and also have a bachelor of arts in social work and social justice, as well as classes in psychology. It is very hard to prepare for something like this, as I know I must be the accused but I only had two encounters with this woman, both where she reached an emotional extreme which was difficult to understand as I did nothing to provoke it. I am curious if there's any advice or insight you can give me at all for how to move forward in preparation from here. I have witnesses from the first encounter (they did not hear words but saw from a distance) who are going to write an endorsement for us and who are also familiar with these tenants and have had similar run-ins with them (they are also females. she seems to react this way to women. I am not making a grandiose statement but only speaking from experience and observation). We have a copy of the n5 form, and also a copy of the bill from the one time they had any issues with maintenance which we fixed day of, in case they said we withholded maintenance. I should also say that the snowblower was broken for awhile and they got to shovelling before my husband finished fixing it and started clearing the driveway of snow. Is there anything else we should prepare?

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  21. Hi Michael,

    I'm hoping to get some input on my current situation. I rent an apartment on a 12 month lease agreement, currently am about 6 months in. I live next to an elevator shaft on the 1st floor, the day I moved in I started hearing a lot of noise migrating into my apartment via the elevator shaft. when I viewed the apartment at first I did not hear any noise due to it being a quieter time of the day. anyways the elevator sends loud bass rumbles vibrations that can be heard and felt throughout the apartment basically 24/7 and seem to be getting louder as time passes. This is causing me and my partner to only get 3-4 hours of sleep. after 3 months of trying to get use to the noises we asked that the landlord see if they could do anything to calm the noises, they said they would look into it and get back to us. 3 months later and no reply so i emailed them today saying enough is enough we would just like to move out if this is not going to be resolved. they said there is nothing they can do for us and we are responsible until the end of our lease agreement. this isn't a case of us not having money for rent we simply would just like to live in peace. is there anything we could do?

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    1. Hi:

      I had a similar case years ago. My client lived in a penthouse apartment and the mechanical equipment for her unit was on the roof of her unit. There was an air handling unit on the roof that vibrated and made a noise that was extremely annoying. On complaint to the landlord the landlord advised her that the unit was operating properly and that this was just a noise that she would have to put up with.

      As my client was very happy in her unit, except for the noise, we retained an acoustical engineer who gave an opinion as to the impact of the noise in the unit. That engineer was able to measure the noise and give an explanation of the impact of the noise. It turns out that noise--and decibel levels--and the science of sound is a whole lot more complicated than one might think. I think its a fair comment to say that "noise" is measured relative to other sounds.

      The point of the engineer was to have the impact described as we were seeking an order from he Board requiring the landlord to have the air handling units inspected. The acoustical engineer was able to also say what kinds of things might be done to change the noises if indeed the sounds were the result of proper and normal functioning of the air handling units. Interestingly, our engineer discovered upon inspection of the air handling units that the units had not been maintained and that rubber mounts had failed. Fixing those mounts did indeed reduce the vibration sounds.

      How does all of this help you? I see you as having an option to move out of the unit due to not having "reasonable enjoyment" or "quiet enjoyment" of the rental unit. That you have the right to such use is a term of every residential tenancy in Ontario. Because the landlord is not giving you quiet enjoyment you can apply to the Board to seek a rent abatement, a repair of the "noise" caused by the elevator, or alternatively a termination of the tenancy. You would use the T2 and T6 forms which you could file as a combined application.

      The difficulty you will face in filing the application is that without an acoustical engineer (or some other expert--Property Standards maybe?), it will be difficult to provide objective evidence of the degree of the sound. If you filed the applications and simply decided to testify about the noise you would find yourselves saying it's "really loud" and a "big nuisance". The landlord would likely respond saying these are "normal sounds" of living in an apartment building and your complaints about the noise are exaggerated or you are being overly sensitive or perhaps that you are trying to escape a lease etc..

      Because you are the applicant to the Board you have the burden of proof in the applications. Simply stating that it is "loud" doesn't give the Board much to work with. Short of retaining an expert to take sound measurements perhaps you can record the sound yourself--perhaps on an iPhone and use a free decibel meter app while videoing it all so you can show the Adjudicator what you are putting up with. If that evidence is compelling you may indeed convince the adjudicator to terminate the tenancy.

      Other things in your favour include the landlord doing nothing to assist you. No one has inspected your unit--to try and hear what you hear. Their indifference is helpful in getting the Board to order your tenancy terminated. Even if the elevator is functioning "normally" perhaps the landlord could have explored constructing a sound barrier against the wall--or other such solutions that their elevator company might have been able to suggest.

      I hope that has given you some ideas. Good luck.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  22. I live in a seniors bldg. 65 yrs up. Tenant above me has grandson on wk-ends, he\s 12 or 13 and she leaves him the apt Sat/Sun for quite a few hrs. He is noisy and I have been dealing with this for several mths. Have wrote 2 letters to property manager and I am told they cannot tell her he can't be here. What are my rights?

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  23. Here's a good one. I rent an unfurnished house on 3.5 acres on a river, starting Nov./14. There were two kayaks and a canoe on the property. Before I agreed to rent the house, I asked the landlord if the kayaks/canoe could remain on the property during my rental and if I could use them, and the landlord said yes. My landlord expressed how much he will miss the house and how he would like to come once in a while to go kayaking, to which I agreed to.

    In late May I used one kayak once, treated it with much respect, put it away properly, etc. One week later my landlord’s daughter showed up unexpectedly and removed the kayaks from the property, telling me they would only be gone for one weekend, however I knew then and there that was a lie and the kayaks were not coming back. They have not come back. I understand that they belong to the landlords and they have a right to do with them what they please. I was a bit upset that they broke a verbal agreement without discussion, they did not give notice that someone was coming over to take them and that I was lied to, but figured it was their problem how they handled it and that I would be a little less friendly from then on, but not raise a fuss.

    This past weekend I received a text from my landlord telling me, not asking me, that another daughter (whom I’ve never met) and her friend were coming over to use the property to go kayaking. I don’t feel this is acceptable. During our initial discussion about the kayaks staying on the property, I said that the landlords themselves were welcome to visit the property to use the kayaks, or to otherwise visit with me and enjoy a campfire. I did not say that their family and their friends could come over, without the landlords, any time they feel like it, I don’t even know them, and I especially don’t feel inclined to let them do that after the kayaks were taken away.

    I don’t know if I can argue that this is greatly diminishing my reasonable enjoyment of the property, however I feel really thrown off kilter by this attitude that the property I’m renting can be used at any time for their family entertainment. It was never once discussed that I would be sharing the space, or that they would maintain rights to use it as they wish. The fact that I wasn’t even asked tells me that they think it’s just fine to use the property for their leisure activities. Even if they ask me first or give me 24 hrs notice I still wouldn’t want them in what I consider my space.

    I also do all of the property maintenance, and it’s a large property, so it’s not like they are contributing in any way to keeping the property looking good or making my life easier, and yet they feel entitled to come and use it.

    Now what if they decide they want to make up a lease, and include use of property in it, and I don’t agree to that?

    Otherwise, I think I'm a pretty good tenant, mature, clean, responsible, quiet, fulfill all of my duties, house/yard maintenance, pay rent on time every month, etc.

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    1. Hi: I'm not sure that the answers you are looking for arise entirely from legal questions. You seem to be looking to maintain peace with your landlords while being respected and being treated fairly. You've taken offence at certain behaviours (and the offence taken seems justified to me). I wonder if the landlord knows that they have offended you? It sounds like you were very informal with the landlord initially and perhaps they think you are exceedingly easy going and amenable to the things they're doing. I think you're going to have to confront the landlord, civilly of course, and make it clear that you are not pleased with how things are going. If face to face is too uncomfortable (at least initially), perhaps you write the landlord a letter advising that you want to raise some issues of concern, end it with some pleasantries and ask for a face to face to work things out. If the landlord is decent at all, then the response to a polite letter should be polite and understanding as well. If the landlord responds negatively well then it's time for the law.

      The RTA will back you up for quiet possession of the rental property--i.e. no sharing with the landlord. The RTA requires 24 hours notice of entry--for specified reasons (see section 27). That is the end of sharing the amenities with the landlord. The availability of the kayaks as part of the rental property is a new one for me. Fixtures are easy---the kayaks are chattels--are you really renting them as well? Generally speaking things that are on the rental complex/rental unit are considered to be part of the tenancy agreement. Do the kayaks fall into "service or facilities". The research I think starts at section 130 and O.Reg. 516/06 s.39--though for a restoration of the kayaks you might be better off with an application under section 29 (see. 29(3))--this is a T2 application which you can find on the LTB website.

      I hope for your sake that this can be straightened out by simply bringing your unhappiness to the attention of the landlord. Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

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  24. Hi my name is Christopher am so thankful for the help you give us less knowledgable ... I have a situation I'm sure you've encountered and I need some guidance . I'm on ODSP I'm fincial strapped so getting up and moving in quick sucession is not feasable. I moved into this apt in NOV 2014 and have had nothing but issues with pests. First it was roaches which was treated by him with some spray bottled pesticide...this was in or around end of DEC there was also fleas which I hesitated on reporting due to my particular illness I'm afriad of being treated poorly or that it would be blamed on me....that's my issue with that pest but in JUN around the same time tenants were moving friends in along with junky looking furniture within a week Istarted getting bites Ithought it may be carptener ants as Ihave those here aswell .
    On one of the follwing nights Inoticed the bedbug on the couch it was the first time I ever saw one and I will never ever forget them !!! I told the landlord who didn't.get a pro till about aweek later and even that was done incorrect I wasn't told what steps to take before he comes. All he did was spray some crap out of a bottle like the landlord did with the roaches . They never wore masks and I never received anything regarding the treatment what to do from that point on...I never received a followup spray...its AUG I've paid rent full he gets it auto depsoit every month and yet he can't give the same curtious back .. I have no furniture I'm scared to bring anything in my illness is triggering all day long due to the inability to sleep which is extremely crucial for me Isuffer from borderline personality disorder...and after almost crying on the phone on the struggle it is for me to even ejoy life let alone my home Iwas told he can't get anyone in for a week so that means I'm gonna be bitten all over all week....please Ineed help guidance as I self harmand this is really making my life hell and Idont know where to go thanks. In advance

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  25. Hi There!! Your blog was very informative. I'm an artist and student, and I own some high end photography equipment that I use at home. This year I sustained an injury which prevented me from working part time while at school. On top of that, I am the single mother of three children, so with my school requirements, and the injury / inability to work, and therefore my need for additional childcare support, I have spent all the money I had saved for living expenses. I am nearing my graduation, but I'm on a practicum for my professional licensing / graduation which is required to be unpaid, and so I found myself in a situation where paying my rent on time is becoming a legitimate concern. My solution to this problem is to rent my equipment to local artists in my network, allowing them to use it on-site in my unit, under the supervision of my designated proxy while I'm at school / on placement. My concern with this, has to do with "Quiet enjoyment." My unit is a flat above a commercial business, and has its own private entrance on a side of the building which is exclusive to it. There's a significant amount of concrete between my upper unit and the commercial business below me. Even with my children running around and with movies being watched on my projector and sound system super loud, we've never had any complaints from the other tenants. The only noise in the neighbourhood comes from the two bars across the street at night. So, I'm wondering, whether there may be a legal issue if I welcomed artists into my home during limited hours (between 10am and 4pm on any given Monday - Friday) to use my equipment, particularly if they are paying to use my equipment in my home/ rental unit, for the purpose of helping me to ensure I am able to pay the rent on time? I have tenant's insurance, but would also be paying for general liability insurance (2 million coverage) if I know people are going to be visiting daily to use my equipment, with my landlord named as an insured... just in case. Is this something I can do as part of my quiet enjoyment?

    ReplyDelete
    Replies
    1. Hi: Your landlord can take action based only on breaches of the Residential Tenancies Act. Is what you're doing breaching the RTA? The standard conduct things that could lead to eviction action are: 1) substantial interference with reasonable enjoyment, 2) illegal act, 3) impaired safety. Given the lay out and set up of the building it is hard to see how your plans could be a substantial interference. Even if they are, the landlord would have to explain how and give you a chance to correct the behavior before taking any action. Is what you're going to do illegal? Illegal in the RTA sense doesn't mean only criminal code illegal. It includes by-laws and any other laws---like zoning bylaw. If renting out your equipment is considered a business, and running a business in your apartment is in breach of a zoning bylaw, then you could possibly be committing an illegal act and you could be evicted for it. However, and it is a big however, not just any illegal act is sufficient to evict a tenant. The illegal act must have the ability to negatively affect the character of the building (in the way that drug dealing gives a building a bad reputation). It is highly doubtful to me that renting out equipment to people who are behaving reasonably is going to be the grounds for technicality illegal act (if indeed it is illegal--which I strongly doubt). Lastly, impaired safety. I don't see how what you're doing could lead to that. I guess the only thing I'll say is that strangers in your home may do things that they wouldn't do in their own place. Remember, as your guests you are responsible for their behavior on your property. If they do something stupid you can be held responsible for it by the landlord (of course you could sue the person for their stupid behavior if you suffer damages for it).

      Frankly, you sound like a landlord's dream tenant. I suspect that you are fine in what you are doing. Let me know if there are any specific complaints or issues I'd be happy to help you out.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  26. Hi Michael,
    I was wondering if you might help provide guidance. My partner and I rent a very small standalone home. During a recent storm, there was damage to the roof, causing leaks through the ceiling and wall. None of our personal possessions were damaged. The landlord has been very prompt about seeking repair, but the process has been very disruptive, and I wonder if it qualifies as interfering with our reasonable enjoyment.

    Since the damage occurred, we have had to put up with very large, very loud industrial-size dehumidifiers and fans that run 24/7. I've found it very difficult to sleep with these on; my landlord merely suggested earplugs.

    Last week, the home restorers determined that they need to remove the living room ceiling and one main wall. We had to move all of our belongings out of that room and into the den. It is quite difficult to move around in the house, as it is very small. We have just a small path that allows us to move from the entrance to the bedroom.

    We currently have no place to sit or eat except for the bed itself. The dust from the repairs coats the entire kitchen, making it truly unpleasant to consider cooking in there--even if we had a place to eat.

    Although the restorers are trying their best to contain the dust, it is still quite bad and is causing both my husband and I considerable congestion. Now that the deconstruction and removal of the damaged materials is nearly finished, our landlord says it is up to her insurance company to determine how long it will take for repairs to commence. Meanwhile, we can barely use the house.

    Our landlord has not offered alternative accommodation (we rent a single home, not an apartment unit). We do not wish to move, as both of us are in the midst of very busy times at work. However, do we qualify for a reduction in rent during this time, or is she required to put us up in a hotel during the repairs?

    Thank you so much.
    - Jacqueline

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    Replies
    1. Hi Jacqueline: Your landlord is not required to put you up in a hotel. If you have your own insurance you might find that your insurer will put you up in a hotel during repairs. This is a rather standard part of most tenant's insurance. If you have no insurance you should contact the landlord's insurer as they may put you up in a hotel as part of the "claim".

      If you get no where with that collect good and clear evidence of the extent of the disruption. Take lots of video, lots of pictures. Write to the landlord advising that the premises are not habitable, that you can't tolerate this any longer. Advise that you are claiming a 100% rent abatement until the property is returned to proper working function (i.e. all repairs are completed). You can then file an application with the Landlord and Tenant Board (use Form T2 & T6). Take some guidance on how to fill in the form from the guide available for both forms. Collect the evidence you need in support of the individual claims you make in the forms. Note that for rent abatements and damages flowing from repair issues the Board looks closely at the reasonableness of time frame of the work being done and the extent of the use of the premises available to the tenants.

      This type of application is tricky enough and if you can afford counsel you really should retain a lawyer to help you. Your landlord is likely to say they are acting diligently and within a reasonable period of time hence no rent abatement is due to you. Diligently repairing does get the landlord a pass, to a certain extent. However, beyond a few days here and there the "proceeding diligently" argument loses steam. Your right to quiet enjoyment of the rental unit is a contractual right not hinged on negligence. You contracted for the unit and a term of that contract (lease) is quiet enjoyment (it is in every lease whether explicitly written or not). You clearly are not getting quiet enjoyment of the property and as such you have your claim. Note that you may not recover 100% of your expenses if you go rent a hotel--much turns on the circumstances and an adjudicator may view the situation differently than you do. However, if you have some financial flexibility then moving out pending the repairs and filing an application is likely the quickest way to bring this to a head and get the work done. So long as you stay in possession and pay your rent the landlord is not quite as motivated to encourage the insurer's contractors to get the work completed.

      Good luck

      Michael K. E. Thiele

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  27. Hello. I rent a room with my other three roommates at the house. Landlord doesn't live here. However, landlord can suddenly come over and bring her guests and have dinner at our house. Moreover, her friends repeatedly come over and stay over night at the house as nd bring their guests.

    M questions is should the landlord give us notice that she is going to enter the house in our case that we just rent a rooms, and Landlord doesn't live here? Or 24 notice applies only if I would rent whole house?

    2) Can the Landlord's guests enter the house, stay over night and basically live here every so often?

    ReplyDelete
    Replies
    1. Hi: What an incredibly odd situation. However, I had a similar case many years ago and it turns out that there is a bit of nuance in determining the obligations of the landlord. What it basically turns on is the nature of the residential complex. In a traditional apartment building you have no expectation of the landlord providing 24 hours notice to enter the premises and walk the common area hallways or to enter the rooms and spaces that service the building. These areas of the building while not fully public are in that nature with the tenants not expecting to have an exclusive use of that space (though the use of the common hallways does form part of their rights under the tenancy agreement).

      Then their is the type of residential complex you are describing. It is essentially a rooming house, though not constructed as a rooming house where the construction style reflects that of an apartment building. Your residential complex is a regular house with individual bedrooms being rented out as the rental units with the rest of the services associated with the lease--bathroom, living room, t.v. watching, social gathering space, kitchen, being shared by the individual tenants in the rooms. When this is the living arrangement and this reflects the intended nature of the tenancy of the individual tenants then in my opinion the landlord must indeed provide 24 hours notice before entering. Further the landlord may only enter for the specific reasons permitted in the Residential Tenancies Act (see section 26 & 27 Residential Tenancies Act). Entering to have dinner with friends is not one of the accepted grounds for entry with or without notice.

      The case that I had before the Landlord and Tenant Board turned on the expectations of the landlord and tenant and the nature of the residential complex. In that case, the landlord was found to have entered illegally because he failed to provide 24 hours notice even though he only stayed in the communal space that was available for all of the individual tenants and he did not enter into any of the exclusive use space that was rented to tenants.

      So, my opinion to you is that your landlord may very well be in breach of the RTA. It depends on the characterization of the premises, the expectations of the parties, and of course the view of the adjudicator that may hear the case.

      Good luck to you.

      Michael K. E. Thiele
      www.ottawalawyers.com

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  28. I am an owner of a restaurant (and do not own the building). It is a 3 storey building in which the first level is the restaurant, and the two levels above are residential apartments. My lease (which was assigned as a result of purchasing an existing restaurant) has a clause indicating that the business must not prevent the "quiet enjoyment" of the upstairs tenant.

    We play music at the restaurant during service, which is at a volume that patrons younge and old are able to have a conversation, enjoy their meal and generally have a great time. Since opening a few months ago we have had complaints from the tenant upstairs. We spray foamed the ceiling however the complaints still persisted. The landlord has said that the music is barely audible and only in a small section of the apartment.

    The tenant has now started to loudly bang on the ceiling when we play sporting events and patrons are cheering after a big play for example. The banging continues to the point where the patrons feel uncomfortable, and this is clearly causing damage to my business.

    The owner of the previous restaurant which I acquired ran a losing operation, as the restaurant was mostly empty, closed very early, and in turn was very quiet.

    We have never actually received a complaint from city by-law officers or the police, as the tenant is only complaining to the landlord. I have offered to the landlord that I would move in since the tenant upstairs appears to be very unreasonable with what actually constitutes "quiet enjoyment". At the end of the day no apartment unit is perfectly silent and especially one which is directly above a restaurant.

    What are my rights as a business owner and lease holder in this situation?






    ReplyDelete
    Replies
    1. Hi: I'm sorry to say that your question is beyond the scope of this blog. All of the forms, applications and processes before the Landlord and Tenant Board are not available to you. As a commercial tenant your rights are not adjudicated under the Residential Tenancies Act. It is up to your landlord to Act against the tenant (your landlord could try an application at the Landlord and Tenant Board) or for you to take action against the tenant in Court. To do that you should consult with a commercial lawyer.

      Good luck

      Michael K. E. Thiele
      www.ottawalawyers.com

      Delete

IMPORTANT NOTICE

Any answers provided are intended to reflect the Law of Ontario, Canada. The answers are not legal advice and no one should rely on the answers provided as legal advice. The answers are intended to be general information about Ontario Law and are the personal view of the author based on the limited facts provided to the author. The answers may not be legally accurate and may indeed be contrary to the law of Ontario. Answers and conclusions drawn may have been different if facts had been shared that have not been disclosed in the comment/question. This blog is intended to assist people in learning about Ontario Landlord and Tenant Law. However, if you have actual legal problems this blog should under no circumstances replace proper legal advice obtained by retaining a lawyer or licensed paralegal to advise you. Nothing in this blog, comments submitted or answers provided, gives rise to a solicitor and client relationship. Comments are published as submitted and commenters should be aware that if they identify themselves in a comment that their identity will become public upon the comment being published. Comments that have been published may be deleted upon request to the author.

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About Michael Thiele

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Ottawa lawyer and partner at Quinn Thiele Mineault Grodzki LLP.  Graduate of Queen's University in Kingston, Ontario.  Called to the bar in Ontario in 1997.  Undergraduate degree at Colby College, Waterville Maine, U.S.A.